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Waihopai - my part in its downfall
John Edwards
1 August 2016

We at the Office of the Privacy Commissioner enjoy a good film as much as the next person, and relish the opportunity the NZIFF presents to see some of the best cinematic endeavours in the world on our screens.

It is seldom difficult to find a privacy link somewhere in the programme, and I’m looking forward to catching Zero Days, a documentary about Stuxnet, the US/Israeli hack on Iranian nuclear centrifuges that (who’d have thought?) had potentially catastrophic consequences.

Closer to home, we’ve been treated to the premier of The Fifth Eye as it moves from the pavement to the big screen.

It is a film about New Zealand’s role in the Five Eyes alliance, the intelligence gathering (OK, spy) network which includes Australia, Canada, Britain, and, of course, the big brother, the United States.

The film offers few new insights, settling instead to repeat the leaks, speculations and concerns aired during Kim Dotcom’s trials and later famously at his “Moment of Truth”, the Snowden papers. The film takes in the law change in 2014 that “clarified” the GCSB’s powers, but it brings little to the table by way of new information about the international intelligence industry.

Waihopai spy base

The strength of the film, and what makes it worth watching is the narrative based around the three Catholic peace activists who, in 2008 breached the security of the GCSB’s Waihopai satellite monitoring base, and attacked one of the protective domes with a sickle, deflating it, and presumably temporarily disabling the installation at a cost (as later claimed by the Crown) of $1million.

To the astonishment of the legal fraternity, a jury acquitted the “Waihopai 3” of willful damage charges. The film will help you understand why. The self-described “bumbling” vandals were driven by a deep conviction as to the righteousness of their task. Their engaging incompetence is best depicted in a scene in which one of the three, given a cell phone to receive the message about when to bring the truck, becomes worried when he hasn’t heard from his co-conspirators two hours after the appointed time. He calls them. “Where are you?” he enquires. “Didn’t you get our text?” comes the whispered response? “What’s a text?” replies the hapless peace activist.

My encounter with the protesters

If the film had begun its narrative 24 hours earlier or finished a few months later, your correspondent might well have featured on the screen. The first we see of the three activists is at a prayer meeting and vigil close to Waihopai in January 2008, evidently scoping out the attack they would carry out three months later.

In January 2008, I was driving from Auckland to Wellington, and stopped to pick up an elderly bearded hitchhiker in Matamata. I didn’t recognise him, but once he described his vocation and mentioned his tenant, I realised who he was.

He was Father Peter Murnane, the Dominican friar into whose custody the Algerian refugee Ahmed Zhaoui had been released after his successful Supreme Court appeal against his detention. He told me he was on his way to stage a peaceful protest at Waihopai. I drove him to Levin, and offered to run him down to the farm where he would be staying. We were met by a lanky, young-looking farmer in overalls and gumboots who Father Murnane introduced as Sam Land. Imagine my surprise when I, by now surely an accessory, saw the two of them on the news, together with their not-very cell phone partner Adrian Leason being bundled into a Police car having carried out their spectacular and costly protest!

Later developments

Had the film run on from the Crown’s abandonment of the costs case against the three, and shown any interest in actually informing viewers about the accountability framework underwhich the GCSB operates, and one of its Snowden revealed projects, codenamed Cortex, it might have included footage of the film’s producer preventing the GCSB from providing the greater transparency many who oppose the activities of the organisation claim they want to see.

Although that event had to be cancelled, we were able to run it later in the year, and the GCSB released a declassified version of the privacy impact assessment for Cortex. Instead of these facts, the film makers chose to include a tiny clip from the Prime Minister’s interview with John Campbell (“it’s like Norton Anti-virus”) which at the screening I attended received the no doubt hoped for laughs from the audience.

The Fifth Eye succumbs to the temptation of polemics, but nonetheless does a public service in presenting one of the vital issues of our time to the New Zealand public. It raises questions that should be answered - some of which my colleague at www.igis.govt.nz is engaged with right now - but most of all the film tells a quite charming story of three bumbling New Zealanders, acting in a tradition that goes back to Te Whiti o Rongomai and Archibald Baxter who put their lives and wellbeing on the line for their belief in peace.

There will be some who think the Waihopai 3 were misguided or misinformed, but there is no doubting their conviction and the honesty of their cause.

Comments

Dear Privacy Commissioner,

This response is to address assertions made in your blog post titled ‘Waihopai – my part in its downfall’ dated August 1, 2016. The post contains factual inaccuracies and misrepresents the film The 5th Eye and the filmmakers in a way that is disturbing given the role of the Office of the Privacy Commissioner as a supposedly independent entity and public servant.

Firstly, the GCSB bill was passed in 2013 – not 2014 as you state. Secondly, your assertion, “The first we see of the three activists is at a prayer meeting and vigil close to Waihopai in January 2008” is incorrect. The Waihopai Three are shown attending the annual Anti-Bases Campaign protest at the base at that time.

You state; “The film offers few new insights”. This is not an accurate reflection of the breadth of information presented. We interviewed more than a dozen local and international experts for their analyses. The film investigates a range of issues that you choose to ignore, including New Zealand’s role in drone strikes, rendition and torture, the U.S. wars in Afghanistan and Iraq, the War on Whistle-blowers, mass surveillance and others. Instead you prefer to cite things that are not in the film simply, it would seem, to grind an axe about a protest at an event the Office of the Privacy Commissioner staged in collaboration with the GCSB around Cortex.

You surmise, “Had the film run on from the Crown’s abandonment of the costs case against the three, and shown any interest in actually informing viewers about the accountability framework under which the GCSB operates…”. This disparaging comment suggests your position is that oversight mechanisms intended to hold the GCSB to account are adequate and robust. They are not – this is what the film evidences. All of the intelligence and human rights experts we interviewed about this point were of the same view, leading to the decision that including such information would be a waste of screen time and further propagate a dangerous mistruth.

You claim that the documentary “Might have included footage of the film’s producer preventing the GCSB from providing [the] greater transparency” in reference to a protest. This is a falsehood. Errol Wright is the sole producer of The 5th Eye and was not there prevent Una Jagose’s speech but to film it. You announced that the presentation was cancelled and informed the attendees they would be invited to a rescheduled event.

Errol later contacted your office to indicate that he wished to also cover the second event for our documentary project The 5th Eye. He received no reply. Instead it was discovered that your office had conducted background investigations on all the attendees so that you could identify people with dissenting opinions, or that might have links to the protesters, and then excluded them from attending the rescheduled event. At the time however you said how important it was to have open discussions and that “This is about freedom of speech”, and "I am not going to have a process of vetting”, and yet that is exactly what you did.

Your office further informed Errol that he had been excluded as he was too great a security risk having made a documentary four years earlier (Operation 8) which featured one of the protesters. This amounts to selective targeting and media suppression – an issue The 5th Eye identifies as being as part of the damaging ‘War on Journalism’ and a topic not referenced in your blog. Instead you criticise the filmmakers for not including footage from a meeting we were barred from covering by your own office.

It is also concerning that you seem to conflate Speargun, Prism and XKeyscore etc – mass-surveillance projects and programmes that were exposed in the Snowden papers - and Cortex which you refer to as a “Snowden revealed project[s], codenamed Cortex”. No such documents were disclosed by Edward Snowden or Glenn Greenwald – this was a project promoted by the government in effort to counter disturbing revelations from the Moment of Truth event.

You continue on: “The film makers chose to include a tiny clip from the Prime Minister’s interview with John Campbell (“it’s like Norton Anti-virus”) which at the screening I attended received the no doubt hoped for laughs from the audience”. This clip was included because it was John Key’s actual response to the question posed by John Campbell. It was a statement he in fact repeated when interviewed by TVNZ after the Moment of Truth. It is the Prime Minister himself - and not the filmmakers representation of him - that is laughable.

We are at a loss to understand why the Office of the Privacy Commission appears to be prepared to act as an apologist for the GCSB and government instead of championing New Zealanders’ basic human rights. Your position on the Waihopai base and the local agency that runs it on behalf of the NSA and US seems seriously conflicted. If you really wanted to be a part of ‘Waihopai’s downfall’ you would advocate for an abolishment of the GCSB or at the very least its exit from the Five Eyes alliance. The Waihopai Three and the victims of both mass-surveillance and US wars of aggression would no doubt be very grateful.

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The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.